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Smoking law legal battle begins today

07/23/01

For the last 11 weeks, Dan Taite has gone from pub to pub, trying to muster support for a legal challenge many say has little chance of success.

Mr. Taite is a non-smoker. He has a son with asthma and allergies. He concedes second-hand smoke is probably bad for you.
But, armed with a thick binder and boxes of studies and surveys, he is the fundraiser behind a coalition of bars and pubs trying to get a court to overturn the city's tough new smoking ban, which comes into effect Aug. 1.
"This is not a matter of smokers' rights, at all. This is a matter of human rights," he argues.
After raising $275,000, the 180-member Pub and Bar Coalition of Ontario (PUBCO) begins its formal legal battle today. Lawyers Arthur Cogan and Gary Chayko will argue the province gives cities the right to regulate smoking but does not allow a complete prohibition.
"This city council has had blinders on it right from day one," said Mr. Cogan. "We're not advocating smoking without any restriction or regulation. That's not our position whatsoever.
"No matter how laudable the purpose of a municipal bylaw may be, (the Supreme Court has said) it must stand or fall on the basis of a proper application of the law."
Other lawyers, representing the city and the lobby group Physicians for a Smoke-Free Canada, say a challenge has little chance of succeeding. Similar challenges in Waterloo and Guelph have been thrown out. A provincewide ban in British Columbia was thrown out because there had been insufficient public hearings, but is expected to be resurrected. A municipal ban in Victoria still stands. Toronto and Windsor permit designated smoking rooms with separate ventilation.
However, Mr. Cogan believes the question of jurisdiction hasn't been addressed before, leaving him "very confident" of his case.
Mr. Taite, whose ventilation business has all but gone under since the bylaw passed this spring, cites statistics to back up what he believes will happen once the bylaw takes effect. A 1998 study by the American Beverage Association in California showed between 50 and 60 per cent of 300 businesses surveyed believed they had lost customers. About 60 per cent reported lower tips.
He says bars with patios will have de facto smoking areas, so bars without outdoor seating will suffer. And he says a bar that loses even 15 per cent of its revenue will have to close.
PUBCO wants councillors to discuss, at the very least, a phase-in, or designated smoking rooms and ventilation.
"The city is asking us to gamble with our businesses and that's hard to take," said PUBCO member and Woody's pub owner Jason Crew-Gee. A nonsmoker, he is a reluctant supporter of the challenge. As a customer, he likes the idea of a ban. As an owner, he's worried.
The city heard arguments about ventilation systems and designated smoking rooms during more than 12 hours of public presentations before adopting the bylaw. Officials have also conducted opinion surveys and researched bans in other cities, where business came back.
The city also offered PUBCO $300,000 towards advertising and promotion of their new smoke-free status if they set the lawsuit aside.
"This is a public health concern and we think the courts have recognized over and over again in all of the decisions that have been rendered the right of municipalities to protect public health," said Michael Rankin, of law firm Lang Michener, who will lead a "vigorous" defence of the bylaw. "The city is in this one for good, there's no question about that."
Bylaw officers visited all 1,200 of the city's bars, restaurants, gaming rooms and Legion halls, delivering information packages. They'll begin random inspections Aug. 1, but won't start issuing fines until September.
"If there is defiance, legal action will be taken," said bylaw services director Susan Jones.
"We've done our homework," she said. "For the most part, the bylaw officers were very well received." She doubted there would be "open defiance."
PUBCO's official position is members should obey the bylaw until a court orders otherwise. But they will cover the legal fees of any member who is fined.
And Mr. Taite says pub owners are furious that they'll be responsible for enforcing the city's rules.